Family heirlooms often have significant sentimental value for both giver and recipient. They can also become a major point of contention in a New Jersey divorce if they have great monetary value or there’s a vindictive soon-to-be-ex involved.
If you are going through a New Jersey divorce, are your family heirlooms up for grabs?
Strictly speaking, no. But as our Somerset County divorce attorneys can explain, it really depends on several factors, including the type of assets, when and how they were acquired, and whether your soon-to-be-ex did anything to help increase the value of those assets.
When it comes to division of assets in a New Jersey divorce, N.J.S.A. 2A:34-23.1 holds that all property acquired during marriage – except for inheritances and gifts – is considered marital property. Whatever assets you were in possession of prior to the marriage are considered your own separate property.
Where this gets a little complicated is when:
Commingling of assets is when you combine or mix separate property that is yours alone with marital property that belongs to both of you. The most common way separate property is commingled is when marital funds are used to maintain, improve, contribute or pay off a separate property asset. Commingling can also happen when separate and marital assets of the same kind are mixed together. An example would be joining the contents of a separate bank account into a joint account with both of your names on it.
The good news is that many family heirlooms and inheritances are easier to protect from commingling than other types of assets. If you are gifted a valuable antique or family jewelry, that should be fairly easy to keep separate as long as you don’t sell it for money and then commingle it with marital assets. If you do take a certain amount of money from that separate property and then invest it into something like a home you two will share, it is critically important that you be able to trace and prove that property is separate. Keep any checks or other pertinent records. You may be credited this amount from the value of the home.
Drafting a prenuptial agreement can help ensure family heirlooms or inheritances will be designated as separate property in the event of a divorce.
But even if the rules on family heirlooms are fairly straightforward, that won’t necessarily stop your soon-to-be-ex from trying to gain possession of them. We see this particularly when the assets are high-value or in contentious divorces, where one person is intentionally out to hurt or aggravate the other.
It may help while you are gathering documents to prepare to file for divorce or respond to a filing to make a list of valuables in the home and how they came to be there. If the person who gifted you the heirloom is still alive, consider asking if they will put something in writing describing the gift, to whom it was given, when and why. If not, historical records or photographs may help establish that the item has been in your family for a long time and should remain so.
Working with an experienced Somerset County divorce lawyer can help ensure your rights are protected and that you retain the things that matter deeply to you.
Contact our Somerset County divorce attorneys today at (732) 377-3367 to schedule an appointment.
